1.This is an application by way of Notice of Motion dated 26th March 2021 brought under section 3A, 75G and 95 of the Civil Procedure Act (Cap. 21), and Order 22 Rule 22 and Order 42 Rule 6 Order 50 Rule 6, and Order 51 Rules 1 and 3 of the Civil Procedure Rules.
2.The applicant seeks a number of orders, some of which have been spent as follows –1)(Spent)2)(Spent)3)That the court be pleased to stay the execution of the judgment/decree obtained herein pending the hearing and determination of the appellant’s/applicant’s appeal filed in the High Court of Kenya.4)(Spent).5)That the costs of the application abide the outcome of the appeal.
3.The application has grounds on the face of the Notice of Motion that general damages of Kshs.180,000/= and special damages of Kshs.3,550/= had been awarded by the trial court on 12th March 2021, that the appellant had now filed an appeal, and that the appeal will be rendered nugatory if the appeal is successful and the decretal amount is not be refunded by the respondent.
4.The application was filed with a supporting affidavit sworn by James K. Njenga on 26th March 2021 which amplifies the grounds of the application.
5.The application is opposed through a replying affidavit sworn on 20th April 2021 by Nyamao Erickson John the respondent, in which it is deponed that the applicant has not satisfied the conditions for grant of stay of execution of judgment or decree, and has failed to demonstrate substantial loss that they stand to suffer if stay orders are not granted.
6.The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by Kimondo Gachoka & company for the appellant/applicant and the submissions filed by Waiganjo Wachira & co for the respondent. I note that both counsel for the parties relied on decided court case authorities.
7.This being an application for stay of execution of judgment or decree, it is governed by the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules. I note that though section 79(G) of the Civil Procedure Act (Cap. 21) was cited, there is no prayer for leave to appeal out of time.
8.The considerations for a court in determining an application for stay of execution of judgment or decree are -a)Whether the application has been made without unreasonable delay.b)Whether substantial loss may result to the applicant if stay orders are not granted.c)Whether the applicant has provided or offered to provide security for court orders that might ultimately be binding on him.
9.This is a money decree and from the facts disclosed to me in the application, the financial means of the respondent are not known. I thus find that there is possibility of substantial loss to be suffered by the applicants if the amount paid to the respondent is not recovered ultimately if this appeal on quantum succeeds.
10.With regard to delay in filing the application, I note that the application was filed during the period of the Covid-19 pandemic anxiety. In the circumstances of this matter, I do not see any unreasonable delay in filing the application.
11.With regard to provision of security, though I will grant stay of execution, I will order the appellant to pay part of the decretal amount as the appeal herein is only on quantum of damages. Such order for part payment, in my view satisfies the requirement for provision of security by the applicant. I am not persuaded by the applicant’s proposal for provision of a Bank guarantee.
12.Consequently, I order as follows:-1)Stay of execution of judgment or decree is granted pending determination of appeal.2)The above stay of execution is subject to the appellant/applicant paying the respondent through counsel part of the decretal amount Kshs.80,000/= within 60 days from today.3)In default of (2) above, the stay of execution orders granted herein will automatically lapse.4)The costs of the application will follow the decision in the appeal.